What Legal Requirements Exist for a Wrongful Death Lawsuit?

Wrongful death is a legal term that indicates a party’s unlawful actions caused a death to occur. Obviously, not every death is a wrongful death. What makes a death wrongful in the eyes of New York State law?

What Elements Are Necessary for a NY Wrongful Death Lawsuit?

To bring a wrongful death case in New York, the following elements are necessary:

An individual died (New York State law does not recognize a fetus that dies before birth as an individual, even if a wrongful act killed the fetus)

The person died as a result of another’s wrongful act, neglect or failure to fulfill a legal obligation

If the person had lived, he or she would have been able to take legal action against the person who was responsible for the harm

The person who died must be survived by one or more persons who suffered loss as a result of the death

Damages exist that can be recovered by the estate

The court has assigned a personal representative, and that person is the only one who can file the lawsuit on behalf of the surviving beneficiaries (exception below)

When a personal representatives refuses to bring a wrongful death lawsuit, the surviving family may have an administrator appointed to prosecute the wrongful death on their behalf

Time Limitations

If a criminal action was brought against the same defendant with regards to the wrongful death, the personal representative has at least one year from the termination of the criminal action to file a wrongful death lawsuit even if the two year statute of limitations has expired or if there is less than a year remaining before the statue would expire.

Two Weeks of Employee Paid Vacation

A paid vacation bill is under consideration and Mayor De Blasio has made a pledge to support the bill. It appears the NYC Earned Safe and Sick Time Act will serve as a model for the new paid vacation bill.

The National Law Review stated that no other city or state in the nation has a law like this. New York City would be the first if the law passes.

The paid vacation bill would apply to private sector employers, who have at least five employees, and the requirement to receive the benefit is that the employees must work at least 80 hours a year.

What Are the Requirements of the Earned Safe and Sick Leave Law?

Employers with five or more employees, who work more than 80 hours per calendar year in NYC, must provide paid safe and sick leave to employees.

Safe and sick leave accrues at a rate of one hour of leave for every 30 hours worked, up to 40 hours per calendar year.

Accrual begins on the employee’s first day of employment

Employees can begin using accrued leave 120 days after their first day of work

Employers with fewer than five employees must provide unpaid safe and sick leave.

Paid Family Leave, Another Paid Time-Off Benefit in NY

In addition to the above law, New York also has the new Paid Family Leave benefit, which was passed into law. This paid time off enables employees who are sick, have a sick family member or who have a newborn baby to take paid time off from work. As of 2019, paid family leave is now 10 weeks (previously it was eight weeks) and the average weekly wage for the leave has increased from 50 to 55 percent.

At Stephen Hans & Associates, we work with employers to help them understand and comply with employment laws and deal with employment issues.

Filing a Workers’ Compensation Claim after a Construction Site Accident

It’s common knowledge that working on a construction site is one of the most dangerous occupations in the world. You can suffer serious injury in a fall, from a falling object, in a construction site motor vehicle accident, from a dangerous or defective tool or machine, or because of the carelessness or negligence of a co-worker. Fortunately, when you have been hurt on a construction job in New York, you have a right to seek benefits under the state’s workers’ compensation laws.

Though the workers’ compensation system may seem pretty straightforward, many legitimate claims are initially rejected by workers’ compensation insurance companies. It’s in your best interests to retain experienced legal counsel as soon as possible, so that you get the benefits you need and deserve in a timely manner.

There are only two prerequisites to qualifying for workers’ compensation benefits—you must have been hurt and the injury must have occurred during the course of your employment. Injuries suffered on breaks are generally covered, as are injuries sustained while traveling for work. It’s a fairly common practice for general contractors to use undocumented workers or pay workers “under the table.” There’s no requirement that you be on a company’s payroll to recover workers’ compensation benefits.

It’s also important to understand that, while you have the right to pursue workers’ compensation benefits, you may also have the right to file a civil lawsuit and seek damages. The workers’ compensation laws address only the liability of your employer or a co-worker. If your injury was caused by an unrelated third party—the manufacturer of a defective tool or the driver of a vehicle, for instance—you may be able to simultaneously file a workers’ compensation claim and a “third-party” action in civil court.

At Pyrros & Serres LLP, we provide comprehensive counsel to people with workers’ compensation and Social Security disability claims in Brooklyn, Queens, the Bronx and across the greater New York City metropolitan area. Because of our reputation for effective advocacy, many of our new clients come to us as referrals from clients and other lawyers.

Let’s face it, the legalization of the recreational use of marijuana in New York State appears a foregone conclusion. Both the state Legislature and Gov. Andrew Cuomo are negotiating whether to include the legalization of recreational marijuana in the state budget for the fiscal year that starts April 1st. However, keep in mind that license to fire up that joint would not go into effect, at the earliest, until the following year in April of 2020, when New York would officially join the 10 other states that have already legalized recreational marijuana use.

Governor Andres Cuomo’s proposal for the legalization of recreational marijuana use essentially condenses into the following agenda:

Ban marijuana sales to anyone under the age of 21

Establish separate licensing programs for marijuana growers, distributors and retailers, with a corresponding ban on growers also opening retail locations

Create a new state office, The Office of Cannabis Management, to regulate the drug and create a program to review and seal past marijuana convictions

Allow counties and large cities in New York to ban marijuana sales within their boundaries

Impose a 20 percent state tax and 2 percent local tax on the sale of marijuana from wholesalers and retailers, plus a per-gram tax to be imposed solely on growers

Provide preferences and incentives to minorities and women who intend to establish retail sales locations.

Nevertheless, the debate rages on about how far reaching the effects will be within the school environment, impaired driving and ultimately, the workplace.

Along that vein, it is important for all New Yorkers to be aware of the risks of showing up to work under the influence of marijuana. As you know, if you show up to work under the influence of alcohol, and your employer has a substance abuse policy in their handbook, then you risk a disciplinary write-up at best, and termination at worst. The same rules apply to employee’s use of recreational marijuana. If you show up to work high, or light up outside your employer’s premises, employees run the same risks as with alcohol use. Certainly, it is a fine line to tread as there are no uniformly established THC levels that your employer can test to determine an employee’s level of impairment. Employers would therefore be given free license to make subjective judgments as to an employee’s level of impairment based upon smell, speech patterns, eye movement and dilation, delayed reactions, emotional state, short-term memory problems, among other physical symptomology.

It is a slippery slope at best, but an employer is within their rights to terminate employees with substance abuse violations. This is especially so in occupations involving physical labor and the use of a motor vehicle including drivers, delivery companies, waiters, warehouse workers, trades and any employees in the service industry.

The Van De Water Law Firm stands ready to serve you with respect to any employment issue, and our initial consultation is always free.

Luke Perry dying of a massive stroke shocked many people. He was a beloved actor known for his roles in 90210 and more recently in the series Riverdale. It is hard to believe someone at the age of 52 would die of a stroke, especially when no outward cause seemed to exist.

While strokes are more prevalent among seniors, according to WebMD, as many as 10% of all strokes in the United States happen to people under the age of 45. High blood pressure, diabetes, high cholesterol and cigarette smoking are often risk factors for strokes in younger people. Also it is vital to eliminate stress and hostility in your life, because research shows these factors can raise blood pressure.

Yet, these factors also put people of any age at risk.

Take Care of Your Health

While none of the usual risk factors seemed apparent in the death of Luke Perry, his untimely death has made people more aware of their health. Busy business people are often in a rush and do not take care of themselves. All too often high demands lead to putting yourself last and your health can suffer for it. It’s wise to live a healthy lifestyle.

Stroke Prevention — Actions You Can Take

Quit smoking. Smoking thickens the blood and increases plaque buildup in the arteries. These two factors make smokers more prone to developing blood clots, which is what causes strokes.

Lower blood pressure. High blood pressure is the greatest contributor but there are ways of treating high blood pressure. Doctors suggest reducing salt intake, avoiding high cholesterol foods, eating lots of fruits and vegetables and getting exercise to lower blood pressure. Also, smokers should quit smoking.

Quit smoking. Smoking thickens the blood and increases plaque buildup in the arteries. These two factors make smokers more prone to developing blood clots, which is what causes strokes.

Lower blood pressure. High blood pressure is the greatest contributor but there are ways of treating high blood pressure. Doctors suggest reducing salt intake, avoiding high cholesterol foods, eating lots of fruits and vegetables and getting exercise to lower blood pressure. Also, smokers should quit smoking.

Lose weight. Obesity is often related to high blood pressure and diabetes, and these two factors alone can put someone at risk. The best way to lose weight is to reduce calorie intake and increase exercise.

Drink only in moderation. Drinking one alcoholic beverage a day may lower risk, but drinking two or more drinks a day increases the risk. Wine should be the first choice of alcohol because it contains a substance thought to protect the heart and brain. Beverage sizes would be five ounces for a glass of wine, a 12-ounce beer and a 1.5 ounce glass of hard liquor.

Exercise. Moderate exercise at least five days a week helps reduce blood pressure and keeps you fit. The recommended exercise time is 30 minutes a day. If you can’t do it in one stretch, you can divide the time into 10 or 15-minute intervals.

Treat physical conditions. If you have diabetes, you should receive treatment. Diabetes can harm blood vessels, which can eventually put you at risk for blood clots. Atrial fibrillation (irregular heartbeat) is also very important to treat because it can lead to blood clots.

Web Perseverance is an Internet marketing company that helps businesses create resourceful and productive marketing strategies on the web.

Medical Error Definition: What Is a Medication Error?

Medication errors are inaccuracies made during medication preparation or administration. Errors either fail to follow a doctor’s order, pharmaceutical manufacturing instructions or the medical field’s accepted standards for the particular medicine’s use.

Typically, a nurse or nurse staff member will administer medication through a med pass, which means pushing a cart from resident to resident to dispense the medication. Depending on the state’s requirements, an unlicensed nursing staff member may be able to dispense medication under a nurse’s general supervision. However, some states have stricter regulations, and nurses must directly dispense the medication.

What Are Some Medication Error Examples?

The following examples are the ways that administering medication can result in error:

Slicing or crushing medication that should not be divided or crushed. Capsules, tablets or other medications often have “do not crush” instructions.

Failing to provide adequate fluid with medications. Often medicines come with instructions that patients should take it with a required amount of fluid. Not drinking enough fluid can sometimes harm the patient.

Failing to take sufficient food or antacids. Some medicines must be taken with food. Others require patients to take an antacid before taking the medicine. Proper fluids, food and antacids instructions should be followed.

Failure to shake or mix the medication. When a staff member doesn’t shake or mix the medicine, the patient may be at risk for receiving too much or too little of the medication. For example, insulin must be mixed without air bubbles prior to administering it.

Not following standard protocols for medications uses with ENFs (enteral nutritional formulas). The elderly often drink an ENF to supplement nutrition or when they are unable to eat very well. Specific guidelines and protocols exist for administering medication with ENFs. Patients may experience harm when staff members fail to follow proper guidelines.

Of course, more obvious medication errors would involve dispensing the wrong medication, giving the wrong dosage or failing to administer the medication to the patient at all.

If your loved one was harmed due to a medication error, we hope this information helps you to recognize it and get in touch with us.

Sackstein Sackstein & Lee, LLP has extensive experience handling forms of medical malpractice such as medication errors in nursing homes. By discussing your situation in a free consultation, you can find out about the prospects of pursuing legal action.

We Are New York’s

PERSONAL INJURY ATTORNEYS

Our Family Serving Yours for Over 65 Years

Governor Cuomo Is Supporting the Legalization of Marijuana

Marijuana legalization for recreational use appears to be on the verge of becoming law in New York State. Medical marijuana has been legal since 2014, but what would legalization for recreational use mean for New York businesses?

If the legislature passes the Cannabis Regulation and Taxation Act, Governor Cuomo believes it could generate $300 million in revenue a year for New York.

According to the Gothamist, the governor also sees marijuana legalization as an opportunity to create greater income for poor communities and individuals who have “paid the price” for marijuana prohibition.

The legislature is expected to vote on legalizing marijuana on April 1, 2019, and if passed, marijuana could go on sale in April 2020.

The new law would establish an Office of Cannabis Management, which would have oversight of recreational marijuana use for adults who are 21 and older along with overseeing hemp and medical marijuana. The office would be responsible for creating licensing procedures for growers, distributors and sellers. Currently the Retail, Wholesale and Department Store Union represents medical marijuana employees, and it appears that the recreational cannabis industry would also fall under its representation.

Taxes that the law would generate include a 20 percent state tax and two percent local tax on sales from wholesalers to resellers. Taxation for growers would be by the gram.

The law would give priority to minority and women-owned businesses for licenses to grow and sell cannabis.

How Would the Legalization Potentially Affect Business Employers?

Business owners already faced challenges that resulted from the legalization of medical marijuana. Even so, marijuana recreational use would be viewed differently. While an employee cannot come to work drunk, an employee also cannot come to work high on marijuana. However, employers would have to discern which employees have medical cards and are considered disabled, and which employees are not. The ones without medical cards should not be under the influence of marijuana at any time while at work.

While drug testing is more prevalent in the workplace today, testing for marijuana is more complex than testing for alcohol. Also, there are no uniformly established THC levels to determine what would constitute drug impairment under the influence of marijuana. As it stands, observation is the best form of detection and that would include slurred speech, slow reactions, dilated pupils, impaired body movements, poor short-term memory and other physical signs. (Reference: Buffalo Business First)

The main pressing issue for employers would be safety in the workplace and preventing an employee who is using marijuana from working on a job that could put others in danger and result in injuries.

If you have concerns about employment issues, our attorneys at Stephen Hans & Associates are glad to advise you. We represent employers in employment related disputes and issues.

There May be a Good Change in the Law on the Horizon

Older people (and “older” is subjective term), who cannot afford the luxury of retirement, are at a much higher risk of being let go. It’s also exceedingly difficult for them to compete in the labor market once that happens. Whether consciously or subconsciously, some employers tend to think that older workers have less energy and will be less productive, while ignoring the job experience and life experience they bring to the table. Greying hair or a paunch in the midsection can be a kiss of death. After being laid off and out of work for a while, older workers have this additional psychological obstacle to overcome in the interview process. But there are legal protections, so consider fighting back when they let you go instead of obediently signing all your rights away. Retaining an attorney who specializes in this field can often scare up a much more desirable severance than would have been offered otherwise without the need to actually file a lawsuit.

If You Worked in the City of New York – You’re in Luck. In NYC, we have the most progressive anti-discrimination law [1] in the nation, and it covers age. You can win an age discrimination case by proving that your age was a substantial factor (not the only factor, or even the main factor) in the firing decision. This is a tremendous advantage, explained further below.

What does it mean, in real life, when we say you have to prove age was a substantial factor in the decision to fire you? Who decides this? What basis do they use to decide a question like this?

If the case is not settled, the ladies and gentlemen of the jury decide it, after the judge reads them this language [2] (which is part of what we call a jury instruction). The following is part of what the judge would actually read to the jury before they go into deliberations to decide an age discrimination case:

The Employee is not required to produce direct evidence that the Employer discriminated against (him, her) on the basis of age. Discrimination is rarely admitted and may be inferred from the existence of other facts.

In order for the Employee to recover, you must first find that the Employee has proved that (his,her) age was a motivating factor, that is a substantial reason for the Employer’s decision. If you find that the Employee has failed to prove this, then you should proceed no further and report to the Court. If you find that the Employee has proved by a preponderance of the evidence that age was a motivating factor in the Employer’s decision to discharge (him,her), then the Employer has the burden to prove by a preponderance of the evidence that it would have discharged the Employee even if it had not taken (his, her) age into account. If you find that the Employer has proved that it would have discharged the Employee even if it had not taken (his,her) age into account, then you will find for the Employer. If you find that the Employer has not proved this, then you will find for the Employee.[3]

This is called a “mixed motive” standard. It means that if the jury, after hearing all the evidence, decides that your boss had some legitimate reasons to fire you, but that your age, (which is not a legitimate reason), was a significant motivating factor in the firing decision, you win, unless the employer can prove that he would have fired you even without considering your age. This is huge, because no employer is foolish enough to admit firing the employee for an illegal reason; there will always be some file that has been worked up for a while to justify the firing. Sometimes it is disguised as a corporate reorganization, or the creation of new positions that will now handle the tasks you did before you were fired. Under the City law, these excuses can often be shown to be exactly what they are: Mere pretexts to justify the illegal discriminatory firing.

What if You Didn’t Work in New York City?

Federal Law – It’s Bad – But Don’t Despair – It May be Getting Better Soon

If you didn’t work in NYC, you can sue under New York state law [4] , but unfortunately, New York state law is tied to the federal anti-discrimination law [5] , which has been gutted by decisions from the Supreme Court of the United States. With rare exception, all employment decisions that come down from the US Supreme Court now are decided against workers and in favor of management.

Since 1967, the ADEA [6] was added to the federal law to protect older workers from age discrimination, but that law has been severely hobbled by the Supreme Court of the United States. Most discrimination laws, such as Title VII of the Civil Rights Act of 1964 [7] , which protects against discrimination based upon race, color, religion, sex, or national origin, are still decided on a mixed motive standard, similar [8] to the way that age discrimination would be decided under the City law.

However, in a 2009 case [9] , the US Supreme Court (in an opinion written by Clarence Thomas) held that someone suing for age discrimination under the federal statute was no longer allowed to argue mixed-motive; they had to prove their case by what lawyers call a “but-for” standard. This requires proof that the firing decision would not have been made if the person’s age had not been a factor. This is extremely difficult for the employee to prove, and it even allows the employer to say that your age was part of the reason you were fired, but there were other reasons too, and if you had been younger, you would have been fired anyway. This is really a reversal of the mixed motive standard, requiring the employee to bear a very heavy burden to win.

THE GOOD NEWS is that there is bipartisan bill currently under consideration in Congress called POWADA [10] , which has been co-sponsored in the Senate by Chuck Grassley (R-Iowa) and Susan Collins (R-Maine), and the House version has been co-sponsored by Jim Sensenbrenner (R-Wis.) and is supported by Reps. Glenn Grothman (R-Wis.), Will Hurd (R-Texas) and John Katko (R-N.Y.). This is very important, because it means that with Republican co-sponsors, the bill is likely to pass in the Senate, and the House is now under democratic control, so it will definitely pass there. Although President Trump will probably not be very sympathetic to this Issue, it’s probably not important enough for him to veto it.

If this passes, it will effectively overrule the US Supreme Court case mentioned above, and allow age discrimination victims to bring their cases in federal court under a mixed motive standard, with a much higher chance of success. This also translates into a better chance of getting a decent settlement offer without going to court. It will also go a long way toward overcoming the very hostile attitude federal judges now have toward age discrimination cases. There are not many changes in federal law these days that are favorable to workers – but it looks like we have one coming down the pike.

[1] Title 8 of the Administrative Code of the City of New York, The Local Civil Rights Restoration Act, effective October 3, 2005, as well as Local Laws 1, 34, 35, 36, 37, 38, and 40 of 2016

[2] Jury “Instructions” are an explanation of the law which is read to the jurors by the judge at the end of the trial. These “instructions” break down the legal requirements the person bringing the lawsuit has to prove in order to prevail on any claim against a particular defendant. These are read to the jury in every civil trial in New York. CPLR § 4110-b.

[3] Ny Pattern Jury Instructions – Civil, 2019 ed. § 9:2.

[4] Executive Law § 296.

[5] Mittl v. New York State Div. of Human Rights, 100 NY2d 326.

[6] Age Discrimination in Employment Act, 29 USC 623(a).

[7] 42 USC § 2000(e) et seq.

[8] While there are some similarities, all discrimination cases are much easier to prove under the City law.

Dehydration and Malnutrition in New York Nursing Homes

Dehydration and malnutrition are one of the most common types of nursing home abuse.

What Is Dehydration?

Dehydration is rapid loss of body fluid, and according to the American Medical Association, a weight loss in excess of three percent of the individual’s body weight qualifies as rapid weight loss.

What Can Lead to Dehydration?

Lack of access to beverages

Medication side effects

Illness

Physical changes in the elderly person’s body

An individual may experience fluid weight loss as a result of the following:

What Are the Signs of Dehydration?

The most serious signs of dehydration include vomiting, trouble breathing and seizures. Anyone with symptoms like these should be given emergency treatment immediately because these symptoms can be life-threatening.

Other symptoms of dehydration include:

Thirst

Chills

Appetite loss

Fatigue

Dark colored urine

Dizziness or lightheadedness

Dry mouth

Flushed face

What Is Malnutrition?

When nursing home residents do not eat balanced meals or get enough food, they can become malnourished.

How Does Malnutrition Occur?

Dental problems may make it difficult for a resident to eat certain foods. Some elderly persons are unable to feed themselves. When staff shortages exist, those who cannot feed themselves may end up not eating.

In addition, when food is not properly stored or the home serves bland foods or unappetizing meals, residents may not want to eat. Spoiled, ruined or bland foods can result in malnutrition.

Depression can also be a reason that a nursing home resident is not eating well because depression often results in appetite loss. Medications can also cause for lack of appetite.

When to Seek Legal Help

If you suspect that nursing home neglect has resulted in dehydration or malnutrition, and the situation is serious, seek legal help. An experienced attorney can investigate and evaluate whether nursing home abuse exists and help you take legal action.

Legal Concerns for New York Restaurant Owners

If you’re opening a new restaurant in New York City or the surrounding area, there are certain legal requirements you must put in place. You will need to choose a business entity and get your licenses and permits. You must address health and safety issues (ventilation, garbage removal, sanitation, etc.) before opening your restaurant. You will also need to purchase insurance.

When all the above is said and done, you still have the matter of employees. An employment attorney is a vital resource who can help ensure you are up to speed with New York employment laws.

New York Employment Laws

You will have to know which employees must be paid for overtime, the rules about paying tipped employees and the laws for employing minors. You will have to verify the legal work status of every employee at your restaurant and fill out an I-9 form for each employee.

Before you begin the hiring process, it is wise to know what questions you should avoid. Our blog on job interviews will give you a basic idea but to ensure you have all the information, it is wise to consult with an attorney.

Our lawyer can assist you by reviewing your job application to ensure it does not contain illegal questions. You also need to understand how to check references without making illegal inquiries.

It is wise to devise an employee handbook and ensure it is legally sound.

You must set up sexual harassment training for all of your employees based on recent New York State law.

If you feel overwhelmed about the laws involved with opening a restaurant, you are not alone. You can avoid some employment nightmares at the outset by consulting with an experienced New York employment attorney.

At Stephen Hans & Associates, we work with restaurant owners to help them comply with labor laws and to deal with employment issues.